I N T H E S U P R E M E C O U R T

STATE OF NORTH DAKOTA

2024 ND 171

Sharon Ardelle Mitzel, Fred Alan Mitzel, Jr.,

and Eric Joseph Mitzel, Plaintiffs and Appellants

v.

Vogel Law Firm, Ltd. and 

Jerilynn Brantner Adams, Defendants and Appellees

No. 20230372

Appeal from the District Court of Cass County, East Central Judicial District, the 

Honorable Bobbi B. Weiler, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Bahr, Justice.

Paul A. Sortland, Minneapolis, MN, for plaintiffs and appellants.

Richard J. Thomas (argued) and Chris Angell (on brief), Arden Hills, MN, for 

defendants and appellees.

Corrected Opinion Filed 10/02/24 by Clerk of the Supreme Court
1

Mitzel, et al. v. Vogel Law Firm, et al.

No. 20230372

Bahr, Justice.

[¶1] Plaintiffs Sharon Mitzel, Alan Mitzel, and Eric Mitzel appeal from a 

judgment dismissing their claims with prejudice after the district court granted 

Defendants Vogel Law Firm and Jerilynn Brantner Adams (collectively, “Vogel”) 

partial summary judgment dismissing Alan and Eric Mitzel’s claims, and at trial 

granted Vogel judgment as a matter of law dismissing Sharon Mitzel’s remaining 

claims. We conclude the court did not err in granting partial summary judgment 

dismissing Alan and Eric Mitzel’s legal malpractice claims against Vogel. We 

further conclude that the court did not err in determining the measure of 

damages and that Sharon Mitzel presented no evidence she gave up an interest 

in the marital property to secure Fred Mitzel’s agreement to deed Section 19 to 

Alan and Eric Mitzel upon his death. Finally, we conclude the court erred in 

determining Sharon Mitzel presented no evidence she incurred attorney’s fees 

and costs due to Vogel’s alleged legal malpractice. We affirm the judgment in 

part and reverse in part; we remand for further proceedings consistent with this 

opinion.

I

[¶2] This case arises out of alleged legal malpractice in an underlying divorce 

action involving the disposition of land in LaMoure County, referred to as 

“Section 19.” 

[¶3] Fred Mitzel and Sharon Mitzel were married and had two sons together—

Alan Mitzel and Eric Mitzel. In 2004, Fred Mitzel and Sharon Mitzel formed the 

Fred Mitzel Family LLLP (“LLLP”). In March 2005, Fred Mitzel and Sharon 

Mitzel executed a quit claim deed conveying their interests in a large portion of 

their farm, including their interests in Section 19, along with other property to 

the LLLP. 

[¶4] In August 2007, Fred Mitzel commenced the underlying action for divorce 

against Sharon Mitzel. Sharon Mitzel retained Vogel to represent her in the 

divorce action. In July 2009, Fred Mitzel and Sharon Mitzel entered into a partial 
2

stipulation that valued and divided the parties’ property. Even though neither 

party apparently personally owned it, the July 2009 stipulation purported to 

award Section 19 to Fred Mitzel “[s]ubject to deeding to boys upon death.” 

[¶5] In December 2009, Fred Mitzel and Sharon Mitzel entered into a Marital 

Termination Agreement (“MTA”). In the MTA, consistent with the partial 

stipulation, the parties agreed among other things to award Section 19 to Fred 

Mitzel “[s]ubject to restrictions on sale to anyone other than sons, Alan and Eric 

Mitzel; and requirement to deed to Alan and Eric Mitzel upon Fred’s death.” The 

MTA also awarded Fred Mitzel “all right, title, interest, and equity” in the LLLP. 

A divorce judgment, consistent with the MTA, was subsequently entered in 

December 2009, dissolving Fred Mitzel and Sharon Mitzel’s marriage.

[¶6] In September 2018, the LLLP and Fred Mitzel commenced a quiet title 

action against Sharon Mitzel, Alan and Eric Mitzel, and AgCountry Farm Credit 

Services, FLCA (“AgCountry”), seeking an order declaring the LLLP the sole fee 

simple owner of Section 19, subject only to the mortgage interests held by 

AgCountry, and declaring the restrictions on alienation in the divorce judgment 

“null and void.” In February 2019, the district court consolidated the quiet title 

action with the Mitzels’ divorce action. In October 2019, the LLLP and Fred 

Mitzel moved for summary judgment; AgCountry also moved for summary 

judgment. In November 2019, represented by different counsel, Sharon Mitzel 

and her sons moved the district court for relief from the divorce judgment under 

N.D.R.Civ.P. 60(a), seeking the court to correct the “error, oversight, and 

omission” regarding the transfer of certain real property, and moved for 

contempt against Fred Mitzel. 

[¶7] In April 2020, the district court entered an order in the consolidated cases. 

In its order, the court denied Sharon Mitzel and her sons’ Rule 60(a) motion, 

concluding that because the MTA and divorce judgment purported to distribute 

property not owned by the parties to that action, the relief they requested was 

not fixing a typographical or clerical error, but rather a question of real estate 

ownership, and thus was not an “oversight or omission” the court could remedy 

under Rule 60(a). The court held that what Sharon Mitzel and her sons actually 

sought was a remedy under Rule 60(b) for relief due to “mistake, inadvertence, 
3

surprise, or excusable neglect,” but they were “time barred from such a request.” 

In its order, the court also granted summary judgment to the LLLP and Fred 

Mitzel, holding Section 19 was owned in fee simple by the LLLP; and to 

AgCountry, finding it had a valid mortgage against the property. The court 

explained that “a divorce judgment that purported to distribute property that 

was not owned by either party to the divorce” was “a nullity,” and, further, “any 

claim by the Mitzel sons arises out of the Divorce Judgment and for the reasons 

stated are a nullity.” No appeal was taken from the court’s final judgment.

[¶8] In September 2020, Sharon Mitzel, Alan Mitzel, and Eric Mitzel 

commenced this legal malpractice action against Vogel, seeking damages for 

alleged negligence in the divorce action and causing them to “lose” Section 19 in 

settling the divorce action. Before trial, the district court granted partial 

summary judgment to Vogel dismissing Alan and Eric Mitzel’s claims holding 

they lacked standing as non-clients to assert legal malpractice claims against 

Vogel. The court denied Vogel’s summary judgment motion seeking dismissal 

of Sharon Mitzel’s claims.

[¶9] In September 2023, the district court held a trial on Sharon Mitzel’s claims. 

After Sharon Mitzel rested her case, the court granted Vogel’s motion for a 

directed verdict. The court held Sharon Mitzel failed to present any evidence that 

she “gave up” any amount of the marital estate, to which she was otherwise 

entitled, in return for Fred Mitzel’s promise to convey Section 19 to Alan and 

Eric Mitzel upon his death. The court held no evidence supported the conclusion 

she was damaged as a result of Vogel’s alleged malpractice.

II

[¶10] This Court has discussed the four elements of a legal malpractice action 

against an attorney:

The elements of a legal malpractice action against an attorney for 

professional negligence are: 1) the existence of an attorney-client 

relationship, 2) a duty by the attorney to the client, 3) a breach of 

that duty by the attorney, and 4) damages to the client proximately 

caused by the breach of that duty. 
4

Fahey v. Cook, 2024 ND 138, ¶ 8 (quoting Mullin v. Pendlay, 2022 ND 205, ¶ 6, 982 

N.W.2d 330). “Generally, expert testimony is necessary to establish the 

professional’s standard of care (duty) and whether the professional’s conduct in 

a particular case deviated from that standard of care (breach of duty).” Johnson 

v. Bronson, 2013 ND 78, ¶ 22, 830 N.W.2d 595 (quoting Wastvedt v. Vaaler, 430 

N.W.2d 561, 565 (N.D. 1988)). “When it is alleged that an attorney negligently 

failed to perform some act on behalf of the client, the plaintiff must allege and 

prove performance of the act would have benefitted the client.” Id. (quoting Dan 

Nelson Constr., Inc. v. Nodland & Dickson, 2000 ND 61, ¶ 14, 608 N.W.2d 267) 

(emphasis added). “In this context, the ‘case-within-a-case’ doctrine applies to 

alleged negligently-conducted litigation and requires that, but for the attorney’s 

alleged negligence, the litigation would have terminated in a result more favorable 

for the client.” Id. (quoting Dan Nelson Constr., at ¶ 14) (emphasis added). A 

plaintiff alleging legal malpractice must prove the attorney’s negligence was the 

proximate cause of the damage. Id.

III

[¶11] Alan and Eric Mitzel argue the district court erred when it granted partial 

summary judgment dismissing their legal malpractice claims for lack of 

standing. They assert Vogel’s negligence “cost” them their interest in Section 19.

[¶12] The district court granted partial summary judgment to Vogel dismissing 

Alan and Eric Mitzel’s claims on the basis they lacked standing. Alan and Eric 

Mitzel argued they had standing to sue for malpractice because they were direct 

beneficiaries of their parents’ divorce decree. The court rejected the argument, 

concluding North Dakota law requires an attorney-client relationship for a 

plaintiff to bring a legal malpractice action. The court “refuse[d] to adopt the rule 

that non-clients can sue for legal malpractice if they are a direct beneficiary of a 

contract.”

A

[¶13] Under N.D.R.Civ.P. 56, we review the district court’s summary judgment 

decision de novo to decide whether the information available to the district court 

was free of any genuine issues of material fact and whether the moving party 
5

was entitled to a judgment as a matter of law. Fahey, 2024 ND 138, ¶ 7; Mullin, 

2022 ND 205, ¶ 5. “Summary judgment is appropriate against parties who fail to 

establish the existence of a factual dispute on an essential element of a claim.” 

Riemers v. Omdahl, 2004 ND 188, ¶ 4, 687 N.W.2d 445 (quoting Zuger v. State, 2004 

ND 16, ¶ 7, 673 N.W.2d 615). A party resisting a summary judgment motion may 

not simply rely upon the pleadings or upon unsupported, conclusory allegations. 

Id. Although summary judgment is ordinarily inappropriate for legal 

malpractice actions, “[i]ssues of fact become issues of law when a reasonable 

person could reach only one conclusion from the facts.” Fahey, at ¶ 7 (quoting 

Mullin, at ¶ 5).

B

[¶14] “The existence of standing is a question of law, which we review de novo.” 

Matter of Est. of Heath, 2024 ND 23, ¶ 8, 2 N.W.3d 685. “To have standing to 

litigate an issue a party must have suffered some injury from the putatively 

illegal action and the party must assert his own legal rights and interests and 

cannot rest his claim on the legal rights and interests of third parties.” McColl 

Farms, LLC v. Pflaum, 2013 ND 169, ¶ 10, 837 N.W.2d 359.

[¶15] In North Dakota, the existence of an attorney-client relationship is a 

required element of a legal malpractice action. Fahey, 2024 ND 138, ¶ 8. As 

explained in Moen v. Thomas, “a plaintiff in a legal malpractice case must 

establish the existence of an attorney-client relationship.” 2001 ND 110, ¶ 11 n.2, 

628 N.W.2d 325. 

[¶16] The issues of standing and duty are interrelated. A plaintiff lacks standing 

unless the alleged wrong breached a duty owed to the plaintiff personally. Haddy 

v. Caldwell, 355 S.W.3d 247, 251 (Tex. App. 2011) (“Privity, which refers to the 

contractual connection or relationship existing between attorney and client, is 

directly related to the existence of duty and is necessary for a plaintiff to have 

standing to bring a legal malpractice claim.”); see also 7A C.J.S. Attorney & Client

§ 386 (May 2024 Update) (“A party may pursue a malpractice action against an 

attorney only if that party has standing to do so by virtue of being owed 

professional duties by the attorney.”); Dan B. Dobbs et al., The Law of Torts § 719 
6

(2d ed. April 2024 Update) (“While most client-lawyer relationships are formed 

by express agreement, such a relationship may also arise by implication. In those 

situations and some others, the existence of a duty of care is indeed a live issue: 

without a client-lawyer relationship, there is rarely a duty, and without a duty, 

there can be no malpractice liability.” (footnotes omitted)); cf. Nodak Mut. Ins. Co. 

v. Ward Cnty. Farm Bureau, 2004 ND 60, ¶ 14, 676 N.W.2d 752 (explaining an 

individual does not have organizational standing unless there was a duty owed 

to the individual personally). In other words, to have standing in a legal 

malpractice case, the plaintiff must show the defendant attorney owed a duty to 

the plaintiff. Otherwise, the plaintiff is asserting the legal rights and interests of 

third parties, not the plaintiff’s own legal rights and interests. McColl Farms, 2013 

ND 169, ¶ 10.

C

[¶17] “The existence of an attorney-client relationship is ordinarily a question of 

fact.” Moen, 2001 ND 110, ¶ 13. However, Alan and Eric Mitzel do not contend 

they had an attorney-client relationship with Vogel. Thus, based on current case 

law, the district court correctly dismissed Alan and Eric Mitzel’s legal 

malpractice claims on the basis they lacked standing. 

D

[¶18] Alan and Eric Mitzel argue this Court should create an exception to the 

requirement a plaintiff in a legal malpractice action have an attorney-client 

relationship with the defendant attorney. They request we “adopt the rule that 

non-clients can sue for legal malpractice if they were a direct beneficiary.” Citing

Holbach v. Holbach, 2010 ND 116, 784 N.W.2d 472, and Botner v. Botner, 545 

N.W.2d 188 (N.D. 1996), they assert it is not “too great a leap” to permit a child 

who was intended to receive a benefit under a divorce decree to bring a legal 

malpractice claim against the attorney who represented the child’s parent in the 

divorce.

[¶19] Neither Holbach nor Botner involved a claim for legal malpractice. In 

Holbach, the former husband brought a quiet title action against his four children 

after one child, acting as the former wife’s estate’s personal representative, 
7

attempted to convey her interest in property to himself and his three siblings. 

2010 ND 116, ¶ 3. This Court reversed a summary judgment quieting title in the 

former husband because the judgment failed to recognize his “contractual 

obligation to devise the property to the four children in equal shares.” Id. at ¶ 16. 

We explained a “settlement agreement that is wholly incorporated into the 

divorce judgment is merged into that judgment and ceases to be independently 

viable or enforceable,” and “a judgment rendered in accordance with a 

stipulation entered between the parties in a marriage dissolution action is to be 

regarded and construed as a contract.” Id. at ¶ 8. In reversing summary 

judgment, this Court explained the stipulation entered by the former wife and 

husband and incorporated into the divorce judgment constituted an enforceable 

contract because “it create[d] a clear obligation to perform, and the essential 

terms are reasonably certain and definite.” Id. at ¶ 16. This Court held the former 

husband’s title was subject to the terms of the divorce judgment. Id. This Court 

did not discuss standing.

[¶20] In Botner, a son brought an action, as a third-party beneficiary, against his 

father to enforce a stipulation incorporated into his parents’ divorce decree that 

“unambiguously provided his parents would share the financial expense of 

providing a college education for any of their children.” 545 N.W.2d at 189-90. 

This Court wrote, “[W]hen a stipulation is incorporated into a divorce judgment, 

we are concerned only with interpretation and enforcement of the judgment, not 

with the underlying contract.” This Court concluded, as a matter of law, the 

divorce decree imposed an obligation on both of his parents to share in the cost 

of his college education. Id. at 190. Notably, however, the son’s standing to 

enforce the divorce decree was not challenged and was not addressed. Id. at 189 

n.1. Noting the issue of standing was not raised, the concurrence expressed 

“skepticism” over the son’s standing, writing, “Ordinarily a litigant may assert 

only his own rights,” and that the Court’s “holding might well be different were 

the standing issue raised.” Id. at 191-92 (VandeWalle, C.J., concurring).

[¶21] Although Holbach and Botner involved children enforcing stipulated 

provisions in their parents’ divorce judgments, neither case involved a legal 

malpractice action or addressed standing, much less a nonclient’s standing to 

bring a legal malpractice action. Neither Holbach nor Botner support expanding 
8

standing to nonclient children to bring legal malpractice actions against a 

parent’s attorneys for professional negligence in the parent’s divorce action.

[¶22] Alan and Eric Mitzel primarily rely on McIntosh County Bank v. Dorsey & 

Whitney, LLP, 745 N.W.2d 538 (Minn. 2008), and Lucas v. Hamm, 364 P.2d 685 

(Cal. 1961), to support their position. Neither case involves a child’s standing to 

bring a legal malpractice action based on an attorney’s representation of the 

child’s parent in a divorce action. See Lucas, 364 P.2d at 689 (concluding 

“intended beneficiaries of a will who lose their testamentary rights because of 

failure of the attorney who drew the will to properly fulfill his obligations under 

his contract with the testator may recover as third-party beneficiaries”); McIntosh 

Cnty. Bank, 745 N.W.2d at 548 (concluding banks “were not direct and intended 

beneficiaries of the attorney-client relationship” between loan originator and law 

firm). Nor do the other cases cited by Alan and Eric Mitzel. See Marker v. 

Greenberg, 313 N.W.2d 4, 5-6 (Minn. 1981) (holding surviving joint tenant did not 

have a cause of action for legal malpractice against the attorney who drafted the 

joint tenancy deeds when the surviving joint tenant was never a client of the 

attorney); Guy v. Liederbach, 459 A.2d 744, 752-53 (Pa. 1983) (concluding “persons 

who are named beneficiaries under a will and who lose their intended legacy 

due to the failure of an attorney to properly draft the instrument” may bring a 

legal malpractice claim); Blair v. Ing, 21 P.3d 452, 464-68 (Haw. 2001) (permitting 

beneficiaries of testamentary trust to bring legal malpractice claim against 

grantors’ attorney); Auric v. Cont’l Cas. Co., 331 N.W.2d 325, 327 (Wis. 1983) 

(concluding “the beneficiary of a will may maintain an action against an attorney 

who negligently drafted or supervised the execution of the will even though the 

beneficiary is not in privity with that attorney”). However, a number of courts 

have rejected legal malpractice claims by children against attorneys who 

represented the children’s parents in divorce actions.

[¶23] In Pelham v. Griesheimer, 440 N.E.2d 96 (Ill. 1982), the Illinois Supreme 

Court affirmed the dismissal of a malpractice action bought by children against 

the attorney who represented their mother in a divorce case. It did so despite 

Illinois permitting nonclients to recover in legal malpractice cases when “the 

intent of the client to benefit the nonclient third party was the primary or direct 

purpose of the transaction or relationship.” Id. at 99 The court wrote, “We 
9

conclude that, for a nonclient to succeed in a negligence action against an 

attorney, he must prove that the primary purpose and intent of the attorneyclient relationship itself was to benefit or influence the third party.” Id. at 

100. “Applying the ‘intent to directly benefit’ test to the facts alleged in the 

complaint,” the court wrote, “it is clear that the plaintiffs herein are not in the 

nature of direct third-party beneficiaries.” Id. at 100-01. According to the court, 

“The attorney was hired primarily for the purpose of obtaining a divorce, 

property settlement, and custody of the minor children for [the mother], not to 

represent her children’s interest.” Id. at 101. Thus, the court wrote, the children 

were, “at best, only incidental beneficiaries in this situation.” Id. The court held 

“that no duty in negligence was owed by the wife’s attorney to his client’s 

children.” Id.

[¶24] The Wyoming Supreme Court reached a similar result in In re Estate of 

Drwenski, 83 P.3d 457 (Wyo. 2004). In Drwenski, a daughter sued her father’s 

divorce attorney. Id. at 459. The district court granted summary judgment in 

favor of the attorney, finding the attorney owed no duty to the daughter. The 

supreme court affirmed. Addressing the third-party beneficiary analysis, the 

court stated “the inquiry is whether the client’s intent to benefit the nonclient 

was the direct purpose of the attorney-client relationship. The duty does not 

extend to those incidentally deriving an indirect benefit.” Id. at 462 (cleaned up). 

Thus, the court explained, “[t]he primary question is whether [the father] 

specifically intended to benefit [his daughter] when he retained [the attorney] to 

obtain his divorce.” Id. at 465. The court found the father intended to benefit 

himself when he retained the attorney to obtain his divorce. Id. “While we 

recognize that a divorce client’s children will be affected by the divorce,” the 

court wrote, “that fact alone is not sufficient to support a finding that the attorney 

hired to obtain the divorce owes a duty to the children of the client.” Id. 

[¶25] Years later, the Wyoming Supreme Court affirmed dismissal of a son’s 

legal malpractice action against his father’s divorce attorney. Schlegel v. Barney & 

Graham, LLC, 536 P.3d 231, 237 (Wyo. 2023). The court found the son was not an 

intended beneficiary of the father’s divorce proceedings. Id. Thus, the court 

concluded, the son “lacked standing to file a claim of legal malpractice” against 

his father’s divorce attorney. Id. at 238; see Strait v. Kennedy, 13 P.3d 671, 672, 677 
10

(Wash. Ct. App. 2000) (affirming summary judgment dismissing legal 

malpractice claim because mother’s marital dissolution attorney did not owe a 

duty to mother’s daughters); Wilson-Cunningham v. Meyer, 820 P.2d 725, 730 

(Kan. Ct. App. 1991) (holding attorneys owed no duty to children for attorneys’ 

actions taken or not taken in their father’s divorce and affirming summary 

judgment dismissing legal malpractice action); McGee v. Hyatt Legal Servs., Inc., 

813 P.2d 754, 757 (Colo. App. 1990) (holding law firm representing mother in her 

dissolution of marriage proceeding owed no duty to daughter and trial court 

erred in not dismissing daughter’s legal malpractice claim); Haldane v. Freedman, 

22 Cal. Rptr. 445 (Cal. Ct. App. 1962) (affirming dismissal of minor children’s 

malpractice action against the attorney who represented their mother in divorce 

action); see also Strait, at 674 (stating each jurisdiction that has “considered the 

issue of whether an attorney representing one party in a marital dissolution owes 

any duty to the client’s children . . . has held that such an attorney does not owe 

such a duty”); 3 Ronald E. Mallen, Legal Malpractice § 28:9 (2024 ed. Jan. 2024 

Update) (stating “children are not the intended beneficiaries of the client’s 

divorce”). 

[¶26] Unlike North Dakota, the above courts have expanded standing in legal 

malpractice claims to nonclient direct third-party beneficiaries. Despite this, 

those courts still held the attorneys did not owe a duty to their client’s children. 

Although the courts primarily based their holdings on a lack of duty, not 

standing, “the existence of duty . . . is necessary for a plaintiff to have standing 

to bring a legal malpractice claim.” Haddy, 355 S.W.3d at 251; see also 7A C.J.S. 

Attorney & Client § 386. Thus, those courts’ holdings support the conclusion a 

child lacks standing to bring a legal malpractice action based on an attorney’s 

representation of the child’s parent in a divorce action. 

[¶27] The threshold inquiry in third-party beneficiary cases is “whether the 

plaintiff is an intended beneficiary of the transaction; if not, no further inquiry 

need be made.” Schlegel, 536 P.3d at 237; see also In re Est. of Drwenski, 83 P.3d at 

465 (“While the answer to the threshold question of intent does not totally 

resolve the issue, no further inquiry need be made unless such intent exists.”). 

To be a direct and intended beneficiary of the attorney’s services, the client and 

attorney had to enter into the contract for the direct benefit of the plaintiff. See
11

McIntosh Cnty. Bank, 745 N.W.2d at 547 (“A party is a direct beneficiary of a 

transaction if the transaction has as a central purpose an effect on the third party 

and the effect is intended as a purpose of the transaction.”); Pelham v. Griesheimer, 

417 N.E.2d 882, 884 (Ill. App. Ct. 1981) (stating the legal malpractice claim fails 

because there is no allegation the contract “was entered into between defendant 

and [the client] for the direct benefit of plaintiffs, which is an indispensable 

element of a third-party beneficiary theory of recovery”); id. at 886 (“We note 

that in these will-drafting cases the sole purpose of retaining the attorney is to 

directly benefit a known third party or parties.”); id. at 887 (pointing out “that 

the line of out-of-state cases extending an attorney’s duty to non-clients appears 

to be limited to a narrow range of factual situations wherein the client’s sole 

purpose in retaining an attorney is to benefit directly some third party or 

parties”); In re Est. of Drwenski, 83 P.3d at 462 (“Under the third party beneficiary 

analysis, the inquiry is whether the client’s intent to benefit the nonclient was the 

direct purpose of the attorney-client relationship.”).

[¶28] Alan and Eric Mitzel argue the requirement a nonclient be “the directed 

and intended beneficiary of the representation” is “outdated language and most 

modern courts emphasize the fact that a non-client does not have to be the direct 

and intended beneficiary, but rather a direct beneficiary of the transaction.” The 

only citation they provide to support their assertion about the position of “most 

modern courts” is Meriturn Partners, LLC v. Banner & Witcoff, Ltd., 31 N.E.3d 451 

(Ill. App. Ct. 2015), an Illinois intermediate appellate court decision.

[¶29] The intermediate appellate court in Meriturn Partners wrote, “The key 

consideration in determining whether an attorney owes a duty to a nonclient 

third-party is whether the attorney is acting at the direction of or on behalf of the 

client to benefit or influence a third-party.” 31 N.E.3d at 457. In support of that 

statement, the appellate court cited In re Estate of Powell, 12 N.E.3d 14 (Ill. 2014). 

However, Powell quoted Pelham, stating that “for a nonclient to succeed in a 

negligence action against an attorney, he must prove that the primary purpose 

and intent of the attorney-client relationship itself was to benefit or influence the 

third party.” 12 N.E.3d at 20 (quoting Pelham, 440 N.E.2d at 100). Alan and Eric 

Mitzel have not demonstrated the Illinois Supreme Court has modified its test to 
12

determine whether a nonclient third-party has standing to bring a malpractice 

action, much less how “most modern courts” address the issue.

[¶30] It is undisputed Alan and Eric Mitzel were not Vogel’s clients and, thus, 

were not in privity with Vogel. As such, Vogel owed no duty to them under our 

current case law, meaning Alan and Eric Mitzel lacked standing to sue Vogel for 

its representation of their mother. Moreover, even if this Court were to recognize 

an expansion or exception to the privity requirement, as requested by Alan and 

Eric Mitzel, Vogel’s legal services for Sharon Mitzel in this case involved 

securing a divorce and division of Fred Mitzel and Sharon Mitzel’s marital estate; 

the “sole purpose” or “central purpose” of Vogel’s legal services was not to 

benefit Alan and Eric Mitzel. Alan and Eric Mitzel did not present evidence that 

Sharon Mitzel retained Vogel’s legal services for the sole or primary purpose of 

directly benefitting Alan and Eric Mitzel. Thus, under the facts of this case, we 

decline Alan and Eric Mitzel’s invitation to expand the privity requirement for 

legal malpractice claims. 

[¶31] Alan and Eric Mitzel argue the district court’s dismissal of their claims “is 

unjust.” We take no position on whether Alan and Eric Mitzel have or had a 

viable claim against Fred Mitzel. We simply hold that, as nonclients, they do not 

have standing to bring a legal malpractice claim against Vogel for its 

representation of their mother in her divorce action.

[¶32] We conclude the district court properly granted partial summary 

judgment dismissing Alan and Eric Mitzel’s legal malpractice claims against 

Vogel. 

IV

[¶33] Sharon Mitzel argues the district court erred when it granted Vogel’s 

motion for a “directed verdict.”

[¶34] After Sharon Mitzel rested her case at trial, the district court granted 

Vogel’s motion for a “directed verdict.” The court held Sharon Mitzel failed to 

present any evidence she was damaged because of Vogel’s alleged malpractice. 

In its written order, the court wrote Sharon Mitzel “presented no evidence that 

Filed by Clerk of Supreme Court 10/02/24
13

she gave up any amount of the marital estate to which she was otherwise entitled 

in return for” Fred Mitzel’s promise to convey Section 19 to Alan and Eric Mitzel 

upon his death. The court therefore held “there was no evidence supporting a 

conclusion that [Sharon Mitzel] was damaged as a result of [Vogel’s] alleged 

malpractice.”

A

[¶35] Rule 50, N.D.R.Civ.P., governs judgments as a matter of law. In 

N.D.R.Civ.P. 50, the term “judgment as a matter of law” has replaced the terms 

“directed verdict” and “judgment notwithstanding the verdict.” See id., 

Explanatory Note. “The standard for determining whether judgment as a matter 

of law should be granted is the same as that for a directed verdict or judgment 

notwithstanding the verdict.” Minto Grain, LLC v. Tibert, 2009 ND 213, ¶ 8, 776 

N.W.2d 549. Under N.D.R.Civ.P. 50(a)(1), a district court may grant a motion for 

judgment as a matter of law “[i]f a party has been fully heard on an issue during 

a jury trial and the court finds that a reasonable jury would not have a legally 

sufficient evidentiary basis to find for the party on that issue.” 

[¶36] “A party moving for judgment as a matter of law ‘is, in effect, claiming 

that the evidence is insufficient to create a question of fact for the jury. And 

whether or not the evidence is sufficient to create a question of fact for the jury 

is itself a question of law to be decided by the trial court.’” Bjorneby v. Nodak Mut. 

Ins. Co., 2016 ND 142, ¶ 7, 882 N.W.2d 232 (quoting Okken v. Okken, 325 N.W.2d 

264, 267 (N.D. 1982)). 

The trial court’s decision on a motion brought under N.D.R.Civ.P. 

50 to deny or grant judgment as a matter of law is based upon 

whether the evidence, when viewed in the light most favorable to 

the party against whom the motion is made, leads to but one 

conclusion as to the verdict about which there can be no reasonable 

difference of opinion. . . . In determining if the evidence is sufficient 

to create an issue of fact, the trial court must view the evidence in 

the light most favorable to the non-moving party, and must accept 

the truth of the evidence presented by the non-moving party and the 

truth of all reasonable inferences from that evidence which support 
14

the verdict. The trial court’s decision on a motion for judgment as a 

matter of law is fully reviewable on appeal.

Bjorneby, at ¶ 7 (quoting Minto Grain, 2009 ND 213, ¶ 7). To decide whether the 

court erred in granting a motion for judgment as a matter of law, “this Court 

examines the trial record and applies the same standard as the district court was 

required to apply initially.” Id.

B

[¶37] Sharon Mitzel argues the district court erred in its instruction regarding 

the measure of damages being what she “gave up” in the MTA to secure her sons 

an interest in Section 19.

[¶38] Generally, we review jury instructions “as a whole and, if the instructions, 

as a whole, correctly advise the jury on the law, they are sufficient although part 

of the instructions, standing alone, may be insufficient or erroneous.” State v. 

Goodale, 2024 ND 120, ¶ 8, 8 N.W.3d 271 (quoting State v. Olander, 1998 ND 50, 

¶ 18, 575 N.W.2d 658). Here, the district court did not file in the record the 

proposed instruction providing the measure of damages which Sharon Mitzel 

challenges on appeal. Because the court granted Vogel’s motion after Sharon 

Mitzel presented her case, the court did not submit the case to the jury and final 

instructions were not given. 

[¶39] Although the challenged instruction is not in the record, we can determine 

the measure of damages applied by the district court. In its order on motions in 

limine before trial, the court stated:

Sharon’s claim essentially boils down to, because of the Defendants’ 

negligence, she did not get the benefit of the bargain in her Marital 

Termination Agreement. The question becomes, what damages, if 

any, did Sharon suffer because she did not get the benefit of the 

bargain. As is clear to all parties, this case is unique because when 

the MTA did not dispose of the property the way Sharon intended, 

it did not affect any interest she personally had in the property; 

Sharon intended to control the property eventually being with her 

sons, after their father passed. Therefore, the Court cannot simply 

say damages should be computed by the lost value of Sharon’s 
15

interest in the property. Rather, the only way in which damages can be 

computed is through determining what, if anything, did Sharon give up in 

order to secure her sons an interest in the property. This way of 

computing damages accurately asserts the proximate cause 

component of Sharon’s negligence claim; any other way in which to 

calculate such damages would be either too speculative or failed to 

have the requisite “proximate” component.

(Emphasis added.) In granting Vogel’s motion for judgment as a matter of law, 

the court stated on the record there was “no evidence” that Sharon Mitzel “had 

to give anything up in order for Mr. Mitzel to sign the settlement agreement [MTA] 

giving the boys [Section 19].” (Emphasis added.) In its subsequent written order, 

the court wrote, “Plaintiff presented no evidence that she gave up any amount of 

the marital estate to which he was otherwise entitled in return for the Promise” 

for her boys to get the Section 19 land upon Fred Mitzel’s death. (Emphasis 

added.) 

[¶40] The record shows the district court measured Sharon Mitzel’s damages 

based on the amount she “gave up” in return for the conveyance of Section 19 to 

her sons upon Fred Mitzel’s death. The parties do not dispute the court used this 

measure for its proposed instruction on damages and in granting judgment as a 

matter of law.

[¶41] Under N.D.C.C. § 32-03-01, “[e]very person who suffers detriment from 

the unlawful act or omission of another may recover from the person in fault a 

compensation therefor in money, which is called damages.” Section 32-03-20, 

N.D.C.C., provides the measure of damages for torts:

For the breach of an obligation not arising from contract, the 

measure of damages, except when otherwise expressly provided by 

law, is the amount which will compensate for all the detriment 

proximately caused thereby, whether it could have been anticipated or 

not.

(Emphasis added.) We have said, “A proximate cause is a cause that, as a natural 

and continuous sequence unbroken by any controlling intervening cause, 

produces the injury, and without it the injury would not have occurred.” Miller 

v. Diamond Res., Inc., 2005 ND 150, ¶ 10, 703 N.W.2d 316. While the determination 
16

of proximate cause and the amount of damages generally present questions of 

fact, the proper measure of damages is a question of law. See id.; Guild v. More, 

32 N.D. 432, 155 N.W. 44, 48 (1915) (stating “the measure of damages is purely a 

question of law”); de Vries v. L & L Custom Builders, Inc., 968 N.W.2d 64, 86 (Neb. 

2021) (“While the amount of damages presents a question of fact, the proper 

measure of damages presents a question of law.”).

[¶42] As discussed, to recover for legal malpractice, there must be damages to 

the client “proximately caused” by the attorney’s breach of the duty owed to the 

client. Johnson, 2013 ND 78, ¶ 22. One noted treatise explains, “The basic 

proposition is that an attorney is liable for all damages proximately caused by 

the wrongful act or omission.” 2 Legal Malpractice § 21:8 (footnote omitted). This 

treatise continues:

Deciding the issue of proximate causation usually resolves the issue 

of which damages are recoverable. The determination of proximate 

causation requires analysis of which of the injuries sustained, if any, 

foreseeably would have been expected to flow from the wrongful 

conduct. In other words, the measure of damages is the difference between 

what the plaintiff's pecuniary position is and what it should have been had 

the attorney not erred. The measure of damages necessarily depends 

on the nature of the attorney’s undertaking for the client. The injury 

is measured at the time of the attorney’s error. The client, usually a 

plaintiff, asserts the legal theory for those damages alleged to be 

proximately caused.

Id. § 21:8 (footnotes omitted) (emphasis added); see also 7A C.J.S. Attorney & Client

§ 401 (“An attorney’s liability for legal malpractice is for all damages directly 

and proximately caused by the attorney’s negligence or wrongful act or 

omission, but damages are generally limited to the client’s actual losses.”). 

“There is no certain or definite rule by which the amount of damages can be 

measured, and each case must be determined on its merits.” Carpenter v. Rohrer, 

2006 ND 111, ¶ 8, 714 N.W.2d 804; see also Lyle, Siegel, Croshaw & Beale, P.C. v. 

Tidewater Cap. Corp., 457 S.E.2d 28, 33 (Va. 1995) (“There is no single measure of 

damages in a legal malpractice case, and, generally, the appropriate measure 

must be determined by the facts and circumstances of each case.”). 
17

[¶43] Sharon Mitzel argues the measure of her claimed damages should be the 

value of the real estate she “lost” due to Vogel’s alleged negligence. The district 

court’s measure of damages was what Sharon Mitzel “gave up” to secure Section 

19 for her sons. 

[¶44] On our review, we conclude as a matter of law the district court’s measure 

of damages comports with both N.D.C.C. § 32-03-20 and the requirement 

damages be “proximately caused” by the breach of the duty owed to the client. 

Although articulated in different words, what Sharon Mitzel “gave up” to secure 

Section 19 for her sons includes “all the detriment proximately caused” by 

Vogel’s alleged legal malpractice. N.D.C.C. § 32-03-20. It also includes “the 

difference between what [her] pecuniary position is and what it should have 

been had the attorney not erred.” 2 Legal Malpractice § 21:8. What Sharon Mitzel 

“gave up” is the amount of loss she actually sustained due to Vogel’s alleged 

malpractice, see John E. Theuman, Annot., Measure and elements of damages 

recoverable for attorney’s negligence in preparing or conducting litigation—twentieth 

century cases, 90 A.L.R.4th 1033, § 3 (1991) (“The general measure of damages in 

a legal malpractice action is the amount of loss actually sustained by the claimant 

as a proximate result of the attorney’s conduct.”), and puts her in the position 

she would have been in but for Vogel’s alleged negligence, see id. (“Proper 

measure of damages in a legal malpractice case puts a plaintiff in a position he 

would have been had the attorney not been negligent.”). If Sharon Mitzel “gave 

up” marital property to secure Section 19 for her sons, the court’s measure of 

damages includes the value of that marital property.

[¶45] We conclude the district court did not err by measuring Sharon Mitzel’s 

damages based on what she “gave up” to secure Fred Mitzel’s conveyance of 

Section 19 to her sons upon his death.

C

[¶46] Sharon Mitzel argues that, even under the measure of damages used by 

the district court, the court erred in granting judgment as a matter of law because 

she proved damages. She argues she “gave up” “her interest in her former 

husband’s businesses valued at $18.0 million.”
18

[¶47] As discussed, in a legal malpractice action, the plaintiff has the burden to 

show damages proximately caused by the breach of the duty owed to the 

plaintiff. Johnson, 2013 ND 78, ¶ 22. This Court has explained, “the amount of the 

damages does not require proof to a degree of mathematical precision; however, 

the jury must have some factual basis for fixing damages.” Johnson v. Monsanto 

Co., 303 N.W.2d 86, 93 (N.D. 1981). 

[¶48] In its order granting judgment as a matter of law, the district court 

explained:

During the presentation of her case at trial, Plaintiff stated that in 

December 2009 at a mediation, she was told that she had to give up 

her interest in the parties’ businesses in order for her boys to get the 

Section 19 land. However, at this time the land was already disposed 

of per the parties’ Partial Stipulation from July 6, 2009. The Plaintiff 

has already secured the promise by Fred to give the land to the boys 

in July 2009. This was the only evidence provided by the Plaintiff 

regarding [d]amages. Plaintiff presented no evidence that she gave 

up any amount of the marital estate to which she was otherwise 

entitled in return for the [p]romise. Consequently, there was no 

evidence supporting a conclusion that Plaintiff was damaged as a 

result of Defendants’ alleged malpractice.

[¶49] Sharon Mitzel argues the district court erred in concluding she did not give 

up anything to secure Section 19 for her sons. She contends she presented 

evidence that she gave up a “substantial amount of property” to secure the 

promise Section 19 would go to her sons. She further argues the additional 

litigation costs made necessary by Vogel’s negligence are “fairly obvious” and 

support a fact issue for the jury’s consideration on damages. 

1

[¶50] After orally granting judgment as a matter of law, the district court entered 

a written order explaining its conclusion Sharon Mitzel “presented no evidence 

that she gave up any amount of the marital estate” to secure Section 19 for her 

sons. The written order reads:
19

On July 6, 2009, Fred and Sharon entered a stipulation as to 

the valuation and division of the real property they believed thereon 

(“the Stipulation”). The Stipulation awarded Section 19 to Fred 

subject to Fred’s promise was part of their marital estate and the 

improvements to provide Section 19 to Alan and Eric upon Fred’s 

death (“the Promise”). Plaintiff testified that the Promise was 

secured without any concession by Plaintiff to reduce her share of 

the marital estate in support thereof testifying “we just did it; it was 

no big deal.” 

Six months later - on December 22, 2009 - Plaintiff and Fred 

entered into a Marital Termination Agreement (“the MTA”). 

Consistent with the Stipulation, the MTA awarded Section 19 to 

Fred subject to the Promise previously agreed to on July 6, 2009.

. . . .

On December 24, 2009, judgment was entered dissolving 

Plaintiff and Fred's marriage (“the Decree”). As to the terms of the 

dissolution, the Decree restated verbatim the terms set forth in the 

MTA. 

. . . . 

During the presentation of her case at trial, Plaintiff stated that 

in December 2009 at a mediation, she was told that she had to give 

up her interest in the parties’ businesses in order for her boys to get 

the Section 19 land. However, at this time the land was already 

disposed of per the parties’ Partial Stipulation from July 6, 2009. The 

Plaintiff has already secured the promise by Fred to give the land to 

the boys in July 2009. This was the only evidence provided by the 

Plaintiff regarding Damages. Plaintiff presented no evidence that 

she gave up any amount of the marital estate to which she was 

otherwise entitled in return for the Promise. Consequently, there 

was no evidence supporting a conclusion that Plaintiff was damaged 

as a result of Defendants’ alleged malpractice.

In its oral ruling, the court specifically stated the partial stipulation “was a 

binding agreement.” It then emphasized that “there’s no evidence” Sharon 

Mitzel “had to give up anything” in order for Fred Mitzel to sign the stipulation; 

“there is zero testimony . . . there was anything given up by Ms. Mitzel in order 

for Mr. Mitzel to sign that settlement agreement.”

[¶51] Sharon Mitzel contends the district court erred in relying on the partial 

stipulation because it was not final. She asserts a voluntary stipulation “is not 
20

final, nor is it binding.” She further asserts Fred Mitzel “was free to change” the 

stipulation. Sharon Mitzel cites Vann v. Vann, 2009 ND 118, ¶ 12, 767 N.W.2d 

855; Eberle v. Eberle, 2009 ND 107, ¶ 15, 766 N.W.2d 477; and Kramer v. Kramer, 

2006 ND 64, ¶ 18, 711 N.W.2d 164, to support her assertion the stipulation was 

not binding on the district court. Sharon Mitzel provides no authority for her 

assertion Fred Mitzel “was free to change” the stipulation. 

[¶52] The partial stipulation, signed by both Fred Mitzel and Sharon Mitzel, 

provides “the parties have settled a number of issues regarding the disposition 

and valuation of certain property which they agree will not have to be addressed 

at trial[.]” It continues, “NOW, THEREFORE, it is agreed by and between the 

parties, that the property outlined on the attached document shall be divided as 

outlined therein.” Regarding Section 19, the parties agreed Section 19 would go 

to Fred Mitzel “[s]ubject to deeding to boys upon death.” As noted by the district 

court, and confirmed in the record, Sharon Mitzel testified Fred Mitzel agreed to 

the disposition of Section 19 without asking for anything in return from her; Fred 

Mitzel did not demand Sharon Mitzel take less marital property before he 

entered the stipulation to deed the property to the boys upon his death.

[¶53] A stipulation is a contract; “an agreement to do or not to do a certain 

thing.” N.D.C.C. § 9-01-01(1); see also Tarver v. Tarver, 2019 ND 189, ¶ 8, 931 

N.W.2d 187 (stating “stipulations must comply with the law of contracts”). 

This Court has recognized two different types of stipulations. A 

stipulation aimed at facilitating the course of a lawsuit is procedural 

in nature. A stipulation that affects the subject matter of a lawsuit is 

contractual in nature. Contractual stipulations deal with the rights 

or property at issue, and they are entitled to all the sanctity of a 

conventional contract. 

Discover Bank v. Hornbacher, 2020 ND 260, ¶ 3, 952 N.W.2d 83 (citations omitted); 

see also Lawrence v. Lawrence, 217 N.W.2d 792, 796 (N.D. 1974) (stating contractual 

stipulations “are styled stipulations only because they occur in connection with 

litigation. In essence they are contracts and are entitled to all the sanctity of a 

conventional contract.”). “Stipulations made by parties to a lawsuit may always 

be nullified by the court for good cause.” Lawrence, at 796; see also Vann, 2009 ND 
21

118, ¶ 12 (explaining although a district court should generally accept property 

settlement agreements in divorce actions, the court “should not blindly accept 

property settlement agreements” because of its statutory duty to make an 

equitable distribution of marital property); Kramer, 2006 ND 64, ¶ 8 (“Our 

decisions . . . require district courts to review settlement agreements to determine 

whether the agreement was entered freely and knowingly, without fraud, 

duress, menace or undue influence, and whether the agreement was 

unconscionable.”); 27C C.J.S. Divorce § 985 (“As a general rule, in divorce 

proceedings, the court is not bound by a property settlement agreement between 

the spouses, but has jurisdiction to consider its validity and fairness, and, if the 

facts justify such action, may disprove or modify it.”). If a court nullifies a 

stipulation, the stipulation is void, invalid, or of no effect. See Black’s Law 

Dictionary 1282 (12th ed. 2024) (defining “nullification” as “[t]he act of making 

something void or of no effect”); id. (defining “nullify” as “[t]o make void; to 

render invalid”). 

[¶54] By its plain terms, the partial stipulation deals with the subject matter of 

the lawsuit by partially resolving some of the issues. The partial stipulation is, 

therefore, a binding contract between Fred Mitzel and Sharon Mitzel as to the 

matters addressed in the stipulation. Although the parties could not bind the 

district court, Fred Mitzel and Sharon Mitzel did bind themselves subject to the 

court’s approval or rejection of their agreement. Both Fred Mitzel and Sharon 

Mitzel were bound by the stipulation’s terms unless and until the court rejected 

or nullified the stipulation or they agreed to modify it. Farmers All. Mut. Ins. Co. 

v. Hulstrand Const., Inc., 2001 ND 145, ¶ 12, 632 N.W.2d 473 (explaining parties 

to a contract may agree to modify or alter the terms of their original contract). 

[¶55] Viewing the evidence in the light most favorable to Sharon Mitzel, and 

giving her all reasonable inferences to be drawn from the evidence, this Court 

agrees with the district court that Sharon Mitzel failed to provide evidence to 

create an issue of fact regarding whether she “gave up” marital property to 

secure Fred Mitzel’s agreement to deed Section 19 to Alan and Eric Mitzel upon 

his death. Sharon Mitzel testified Fred Mitzel agreed to the disposition of Section 

19 without asking for anything in return from her. This agreement was included 

in the MTA and the subsequent judgment.
22

[¶56] The result is the same if the term “lost” is used to measure damages instead 

of “gave up.” Sharon Mitzel did not lose Section 19 due to Vogel’s alleged 

negligence; Sharon Mitzel agreed in the partial stipulation and the MTA that she 

would not receive Section 19. Sharon Mitzel did not demonstrate a difference 

between the marital property she received and the marital property she should 

have received had Vogel not committed the alleged negligence. 2 Legal 

Malpractice § 21:8 (“[T]he measure of damages is the difference between what the 

plaintiff's pecuniary position is and what it should have been had the attorney 

not erred.”). 

[¶57] We conclude the district court did not err in determining Sharon Mitzel 

presented no evidence she “gave up” marital property to secure Fred Mitzel’s 

agreement to deed Section 19 to Alan and Eric Mitzel upon his death. 

2

[¶58] In granting judgment as a matter of law, the district court held “there was 

no evidence on the attorney’s fees.” Although Vogel argued “[t]here was no 

expert testimony to support a link between attorney’s fees,” the court did not 

state its ruling was based on the lack of expert testimony. The court did not 

address the issue of attorney’s fees in its written order.

[¶59] Sharon Mitzel argues she presented evidence of the attorney’s fees and 

costs she incurred due to Vogel’s alleged negligence. She asserts the attorney’s 

fees at issue were placed into evidence. Although there was no expert testimony 

on the attorney’s fees, she argues the additional litigation made necessary by 

Vogel’s negligence is “fairly obvious” and that there was “plenty of evidence” 

by which she could show the fees were caused solely by Vogel’s negligence. 

Noting the legal bills were stipulated to and received into evidence, she contends 

the jury had the ability to “ferret” out any bills not related to the legal work 

caused by Vogel’s negligence.

[¶60] As previously discussed, in a legal malpractice case, “the measure of 

damages is the difference between what the plaintiff’s pecuniary position is and 

what it should have been had the attorney not erred.” 2 Legal Malpractice § 21:8. 
23

“The client, usually a plaintiff, asserts the legal theory for those damages alleged 

to be proximately caused.” Id. § 21:8.

[¶61] In her complaint, Sharon Mitzel specifically requested damages for the 

attorney’s fees “that had necessarily been expended in [her] current effort to 

obtain compensation,” and for the attorney’s fees “she incurred in the underlying 

action to correct the mistakes” of Vogel. A significant distinction exists between 

attorney’s fees incurred in prosecuting the legal malpractice action and fees 

incurred in attempting to rectify purported malpractice. In John Kohl & Co. P.C. 

v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn. 1998), the Tennessee Supreme 

Court noted,

[T]here are three categories of attorney’s fees that may constitute 

damages resulting from legal malpractice: (1) “initial fees” a plaintiff 

pays or agrees to pay an attorney for legal services that were 

negligently performed, (2) “corrective fees” incurred by the plaintiff 

for work performed to correct the problem caused by the negligent 

lawyer, and (3) “litigation fees,” which are legal fees paid by the 

plaintiff to prosecute the malpractice action against the offending 

lawyer. 

The court concluded the trial court “correctly held that corrective fees were 

recoverable,” and that “the lower courts properly declined to award the 

plaintiffs their legal fees incurred as a result of prosecuting this action.” Id. at 

534, 535. 

[¶62] In Larson v. Norkot Manufacturing, Inc., 2002 ND 175, 653 N.W.2d 33, Justice 

Maring indicated in a concurring opinion that corrective fees were recoverable 

in legal malpractice actions. She wrote, “The necessity of incurring attorney’s 

fees and costs in defending the Texas lawsuit was directly a result of the alleged 

legal malpractice and, therefore, constituted legally-recoverable damages.” Id. at 

¶ 45 (Maring, J., concurring). In Larson, this Court explained, “Any appreciable 

and actual harm flowing from the attorney’s negligent conduct establishes a 

cause of action upon which the client may sue.” 2002 ND 175, ¶ 10 (quoting Wall 

v. Lewis, 366 N.W.2d 471, 473 (N.D. 1985)). “Corrective fees” incurred by Sharon 

Mitzel to correct the problems caused by Vogel’s alleged negligence may 

constitute an actual harm flowing from Vogel’s alleged negligence. See Akin, 
24

Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Rsch. Corp., 299 S.W.3d 106, 

122 (Tex. 2009) (adopting the rule “that a malpractice plaintiff may recover 

damages for attorney’s fees paid in the underlying case to the extent the fees 

were proximately caused by the defendant attorney's negligence”).

[¶63] In granting judgment as a matter of law, the district court held “there was 

no evidence on the attorney’s fees.” The court did not hold that the requested 

attorney’s fees were not recoverable in a legal malpractice action. It also did not 

hold expert testimony was required to prove the reasonableness and necessity of 

the attorney’s fees. Thus, the issue is whether, viewing the evidence in the light 

most favorable to Sharon Mitzel, and giving her all reasonable inferences to be 

drawn from the evidence, a reasonable person could find Sharon Mitzel incurred 

corrective fees due to Vogel’s alleged negligence.

[¶64] The legal billings show Sharon Mitzel incurred attorney’s fees after the 

December 2009 divorce judgment. The district court did not explain why the 

legal billings could not be evidence Sharon Mitzel incurred corrective fees due 

to Vogel’s alleged negligence. The legal billings list the dates and a brief 

description of the services provided. They also include the fees charged. Based 

on the dates and description of services provided, a reasonable person could 

determine some of the charged fees were incurred due to Vogel’s alleged 

negligence. Thus, the legal billings provide “some factual basis for fixing 

damages.” Johnson, 303 N.W.2d at 93. 

[¶65] It was Sharon Mitzel’s burden to prove her damages. Johnson, 2013 ND 78, 

¶ 22. Vogel does not cite to any case where we hold an expert is required to prove 

damages in a legal malpractice case. Although an expert may have assisted the 

jury in determining damages, the lack of an expert does not mean a reasonable 

person could not determine Sharon Mitzel met her burden of demonstrating 

some fees were incurred due to Vogel’s alleged negligence. 

[¶66] Based on the record, a reasonable jury had a legally sufficient evidentiary 

basis to find Sharon Mitzel incurred corrective fees due to Vogel’s alleged 

negligence. We therefore conclude the district court erred in granting judgment 
25

as a matter of law on Sharon Mitzel’s claim she incurred corrective attorney’s 

fees and costs due to Vogel’s alleged legal malpractice. 

V

[¶67] We have considered the parties’ remaining arguments and conclude they 

are not necessary to our decision or are without merit. We affirm the judgment 

in part and reverse in part; we remand the case for further proceedings consistent 

with this opinion.

[¶68] Jon J. Jensen, C.J. 

Daniel J. Crothers 

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr